J  F 


UC-NRLF 


■ill 


$B  i3fl  an 


EXCHANGE 


MAR  13  1913 


Uegisilatitie  CHeference  2?ureau. 


JAMES  N.   MOORE,  Director. 


BILL  DRAFTING 


1 


JAMES   McKIRDY,  Assistant  Director. 


IIARRISBURG : 

C.    E.    AUGHINBAUGH,    PRINTER   TO    THE    STATE    OF    PENNSYLVANIA 

1912. 


THIS  BOOK  IS  DUE  ON  THE  LAST  DATE 
STAMPED  BELOW 


AN     INITIAL     FINE     OF     25     CENTS 

WILL  BE  ASSESSED  FOR  FAILURE  TO  RETURN 
THIS  BOOK  ON  THE  DATE  DUE.  THE  PENALTY 
WILL  INCREASE  TO  SO  CENTS  ON  THE  FOURTH 
DAY  AND  TO  $1.00  ON  THE  SEVENTH  DAY 
OVERDUE. 


OCT    4    1S32 


LD  21-50m-8.32 


Hegislatibe  (fleference  2?ureau. 

JAMES  N.  MOORE.  Director. 


BILL  DRAFTING 


BY 
JAMES  McKIRDY,  Assistant  Director. 


IIARRISKURG: 

C.    E.    AUGHINBAUGH,    PRINTER   TO    THE    STATE    OF    PENNSYLVANIA 

1912. 


•  •  «•  .'•  .-.  •« 


(2) 


PREFACE. 


This  outline  of  some  of  the  essentials  of  "Bill  Drafting" 
was  prepared  as  a  paper  to  be  read  at  the  Annual  Meeting  of 
the  National  Association  of  State  Libraries,  held  at  Ottawa, 
Canada,  in  June  1912.  This  edition  is  issued  in  response  to 
numerous  requests  for  copies. 

While  the  subject  is  treated  in  the  barest  outline,  it  is  hoped 
that  this  article  may  lead  to  a  wider  knowledge  and  discus- 
sion of  a  subject  so  vital  to  our  legislation  in  Pennsylvania. 

James  McKirdy, 
Assistant  Director, 
Legislative   Reference   Bureau 


(3) 

258200 


^-*^=D 


(4) 


BILL  DRAFTING* 


When  I  received  from  our  worthy  President  a  request  that 
I  prepare  for  this  meeting  a  paper  on  Bill-drafting,  I  was 
greatly  tempted  to  decline.  There  are  so  many  among  you, 
by  learning,  by  ability  and  by  experience,  better  qualified 
than  I  to  undertake  this  work,  that  it  seemed  presumptuous 
in  me  to  accept.  However,  when  I  came  to  realize  thoroughly 
that  the  chief  function  of  a  paper  read  at  our  meetings  is  to 
stimulate  thought  and  discussion,  my  misgivings  left  me  in  a 
measure;  and  it  is  with  a  lighter  heart,  as  well  as  a  deep  ap- 
preciation of  the  honor,  that  I  essay  the  task. 

Before  taking  up  the  subject  in  detail,  I  need  hardly  do  more 
than  refer  briefly  to  the  great  popular  outcry  of  the  present 
time  against  our  laws  and  our  methods  of  making  and  inter- 
preting them.  To  the  mind  of  the  average  man  the  making 
of  laws  is  one  of  the  easiest  things  in  the  world.  The  electors 
all  over  our  broad  land  go  to  the  polling  place  and  cast  their 
ballots  for  legislative  representatives  chosen  at  random  from 
among  the  people.  And  these  legislators,  the  electors  think, 
must,  through  some  mystic  power,  become  ipso  facto  vested 
with  the  skill  and  the  knowledge  requisite  in  drafting  and 
enacting  wise  and  comprehensible  laws. 

As  Ordronaux  in  his  work  on  Constitutional  Legislation 
says,  "The  right  to  make  laws  being  the  political  heritage  of 
every  citizen  in  a  republic,  the  knowledge  necessary  to  frame 
them  is  assumed  to  come  to  him  by  intution."  Yet,  to  quote 
from  Mill  on  ''Representative  Government,"  "There  is  hardly 
any  kind  of  intellectual  work  which  so  much  needs  to  be  done, 
not  only  by  experienced  and  exercised  minds  but  by  minds  trained 
to  the  task  through  long  and  laborious  study,  as  the  business  of 
making  laws."     But  among  thinking  men,  among  those  whose 


♦Paper  read  at  the  annual  meeting  of  the  National  Association  of  State 
Libraries,  held  at  Ottawa,  June,  1912. 

5 


thougbts  V'ltima'td.v  ar5  -carried  into  action,  there  is  an  in- 
creasing appreciation  of  the  necessity  of  greater  knowledge, 
of  greater  care  and  skill  in  the  drafting  of  our  laws.  How  is 
this  to  be  brought  about?  We  cannot  change  our  form  of 
government.  It  must  still  continue  to  be  representative  in 
theory  at  least,  however  it  may  be  in  practice.  We  cannot 
choose  as  our  representatives  only  those  who  have  the  skill  and 
experience  necessary  in  the  drafting  of  bills.  How  then,  is 
the  problem  to  be  solved?  A  number  of  solutions  have  been 
proposed :  some  very  practical ;  some  absurd  in  the  extreme. 
The  solution  which  seems  to  promise  the  best  results,  and  the 
one  to  which  we  shall,  for  our  present  purposes,  confine  our 
attention,  is  the  one  that  aims  to  provide  for  the  members  of 
the  state  legislature  a  permanent  body  of  men,  skilled  in  the 
drafting  of  legislative  bills,  and  thoroughly  familiar  with  the 
laws  of  the  particular  state  and  the  judicial  decisions  thereon, 
specialists  in  lawmaking,  as  it  were.  From  his  constitu- 
tents  the  legislator  will  ascertain  the  defects  in  the  existing 
law,  or  the  new  phases  in  modern  society  that  necessitate  new 
legislation.  The  draftsman  receiving  these  ideas  can  put 
them  into  the  form  of  a  bill,  which  if  it  becomes  a  law, 
will  fit  into  and  form  a  homogenous  part  in  the  general 
statute  law  of  the  state.  Thus  there  will  arise  in  time  a  new 
profession,  that  of  the  specialist  in  legislation,  the  legislative 
draftsman. 

Before  taking  up  the  main  subject  of  Bill-drafting,  it  might 
not  to  be  amiss  to  discuss  briefly  the  qualifications  requisite  in 
a  member  of  this  new  profession.  Please  remember  that  we 
are  now  talking  of  the  ideal  draftsman.  None  of  us  can  at- 
tain this  ideal;  but  toward  it  we  may  ever  strive  as  to  an 
eagerly  sought  goal. 

In  the  first  place,  the  ideal  draftsman  must  have  the  faculty 
of  expressing  clearly  and  succinctly  his  ideas  in  words.  How- 
ever great  his  learning,  however  long  his  experience,  if  he  can- 
not cloth  his  ideas  in  suitable  language,  he  must  leave  bill- 
drafting  to  others.  Lawyers  do  not  often  have  this  faculty; 
judges  rarely  possess  it;  and,  unfortunately,  it  is  often  lack- 
ing among  the  members  of  the  legislature.  As  a  writer  in  a 
recent  number  of  the  American   Law   Review  says:     "It  is 

6 


foolish  to  assume  that  all  lawyers  can  draft  statutes.  Such 
work  requires  a  concentration  of  mind  and  of  expression  that 
few  men  have."  This  power  of  concentration  and  expression, 
however,  may  be  cultivated  by  assiduous  practice.  I  shall 
refer  to  this  later.  The  draftsman  might  profitably  pay  heed 
to  the  advice  of  the  late  Justice  Stephen  of  England,  who 
said  that  he  "was  not  accustomed  to  use  language  with  that 
degree  of  precision  which  is  essential  to  everyone  who  has 
ever  had  to  draft  Acts  of  Parliament,  which,  although  they 
may  be  easy  to  understand,  people  continually  try  to  mis- 
understand, and  in  which,  therefore,  it  is  not  enough  to  attain 
to  a  degree  of  precision  which  a  person  reading  in  good  faith 
can  understand ;  but  it  is  necessary  to  attain,  if  possible,  to  a 
degree  of  precision  which  a  person  reading  in  bad  faith  can- 
not misunderstand.  It  is  all  the  better  if  he  cannot  pretend 
to  misunderstand  it." 

The  next  thing  that  we  shall  ask  of  our  draftsman  is  a 
wide  knowledge  of  the  law  of  his  particular  state.  This  is 
an  obvious  necessity.  Without  a  clear  and  comprehensive 
knowledge  of  his  state  law  as  a  whole,  he  is  unable  to  judge 
either  of  the  form  or  the  fitness  of  the  bill  he  may  be  called 
upon  to  frame.  This  knowledge  must  include  not  only  the  sta- 
tutory law,  but  as  well  the  decisions  thereon  by  the  various 
courts.  A  careful  study  of  these  decisions  will  often  show 
both  the  strength  and  the  shortcomings  of  the  laws  framed 
by  the  legislature  of  his  state. 

Further  than  this,  he  must  have  an  intimate  acquaintance 
with  the  constitution  of  his  own  state,  and  of  the  judicial  in- 
terpretations of  the  various  sections  of  the  same.  Unless  he 
knows  the  limits  within  which,  by  the  organic  law,  he  must 
labor,  he  is  unable  to  judge  of  the  possible  validity  of  his  bill 
should  it  become  a  law.  Another  set  of  conditions  must  be 
familiar  to  him,  namely,  those  imposed  upon  the  several  states 
by  the  federal  constitution.  He  should,  by  repeated  reading 
and  study,  become  thoroughly  acquainted  with  its  provisions 
and  with  the  judicial  interpretations  made  thereon  by  the 
Supreme  Court  of  our  land. 

Lastly,  the  draftsman  must  carefully  study  the  standard 
works  on  construction  of  statutes.   Bill-drafting  is  synthetic ; 


statutory  construction  is  analytic  The  one  is  the  converse  of 
the  other.  By  careful  study  of  precedents  in  construction  our 
draftsman  will  learn  to  avoid  the  pitfalls  and  dangers  that 
others  have  encountered.  By  careful  attention  to  this  the 
draftsman  will  leave  less  work  for  the  courts  to  do,  and  will 
go  far  toward  removing  that  ground  of  common  reproach; 
that  the  judges  often  make  our  laws  for  us. 

Let  us  assume,  then,  that  our  draftsman  possesses  all  these 
requirements,  what  must  he  next  do?  He  must  practice, 
practice,  practice.  He  must  examine  laws;  not  with  an  eye 
single  to  the  content,  but  with  his  mind  centered  on  their 
phrasing.  Have  the  ideas  been  expressed  clearly?  Have 
they  been  expressed  briefly?  Could  the  ideas  have  been 
stated  otherwise  and  have  gained  in  clearness  and  brevity  by 
the  change?  He  must  answer  all  these  questions.  He  must 
recast  laws.  He  must  strive  to  compress ;  to  be  concise ;  to 
express  himself  with  a  minimum  of  words  and  yet  with  a 
maximum  of  clearness.  As  Ilbert,  the  official  draftsman  of 
the  British  Parliament,  says,  ''Every  superfluous  word  may 
raise  a  debate  in  Parliament  and  a  discussion  in  court."  Our 
draftsman  must  look  for  models,  and  study  them.  He  must 
find  out  the  secret  of  their  clearness  and  their  brevity;  and 
then  practice,  practice,  practice.  A  valuable  aid  in  this  di- 
rection are  the  little  manuals  on  precis  writing,  published 
mostly  in  England.  A  careful  study  of  them  will  greatly 
repay  the  draftsman  for  the  time  and  effort  he  bestows  on  it. 

Our  draftsman,  our  ideal,  with  all  the  knowledge  and  skill 
required  by  study  and  practice,  is  now  ready  to  enter  on  his 
labors,  ready  to  begin  actual,  practical  work.  This  brings  us 
to  the  real  theme  of  this  paper :  Bill-drafting. 

In  laying  down  what  I  think  are  the  fundamental  rules  of 
this  difficult  subject,  I  do  not  wish  to  be  understood  as  even 
intimating  that  the  following  suggestions  are  more  than  a 
resume  or  outline  of  its  salient  features.  A  text-book  on  Bill- 
drafting  remains  to  be  written.  This  paper  is  intended  only 
as  a  summary  of  a  few,  a  very  few,  of  the  leading  principles. 

In  the  first  place,  the  draftsman  should  have  a  clear,  com- 
prehensive idea  of  the  subject  of  his  bill.  There  is  a  well 
defined  distinction  between  the  subject  and  the  purpose  of  a 
legislative  measure.     For  example,  let  us  say  the  draftsman  is 

8 


asked  to  prepare  a  bill  restricting  the  carrying  of  concealed 
weapons.  The  subject  of  this  bill  is  the  regulating  or  perhaps 
even  the  prohibiting  of  the  carrying  of  such  weapons.  The 
purpose  of  the  bill  is  to  prevent  the  carrying  of  the  weapons, 
and  thus  conserve  the  peace  and  security  of  the  citizens.  But 
it  is  clear  that  unless  the  law  is  very  faithfully  and  rigidly 
enforced,  the  carrying  of  such  weapons  will  not  be  prevented 
The  word  "prevent"  then  should  not  be  used  in  the  title  of 
such  bill.  This  distinction  may  seem  over-refined,  judging 
from  our  example ;  but  if  the  draftsman  will  always  bear  this 
distinction  in  mind,  he  will  attack  his  problems  much  more 
intelligently  than  would  be  the  case  if  he  totally  neglected  to 
note  this  difference. 

As  an  aid  to  a  clear  comprehension  of  the  subject  of  his 
bill  he  must,  if  he  can,  supplement  the  suggestions  received 
from  the  legislator  or  department  chief  with  knowledge  of 
his  own  of  the  actual  conditions  which  call  for  this  bill.  A 
good  draftsman  must  be  a  wide  reader.  He  must  at  any 
cost  keep  closely  in  touch  with  the  trend  of  modern  legislation, 
not  alone  in  his  own  state  but  in  all  modern  countries.  He 
must  have  a  good  working  knowledge  of  the  latest  political 
and  sociological  theories.  And  what  is  more,  he  must  know 
the  leading  arguments  both  for  and  against  them.  He  must 
know  well  the  local  conditions  obtaining  in  his  own  state, 
and  not  only  in  the  entire  state,  but  also  in  the  more  important 
subdivisions  of  it. 

Having  then  a  good  grasp  of  the  subject  of  his  bill,  and  a 
more  or  less  intimate  knowledge  of  the  conditions  which  call 
for  the  measure,  he  must  first  examine  carefully  the  laws  of 
his  state  to  see  if  there  is  not  already  on  the  statute  books  a 
law  covering  this  very  subject.  Perhaps  there  may  be  one, 
but  not  quite  in  point ;  one  which,  however,  by  a  slight  amend- 
ment might  serve  the  purpose  well.  If  the  amendment  then 
will  answer,  let  him  draw  his  bill  accordingly.  And  in  this 
connection  he  should  always  bear  in  mind  that  he  should 
be  practical.  He  is  dealing  not  with  abstract  theories 
but  with  actual  conditions — with  actual,  practical  men  and  not 
with  shadows.  Let  him  take  Lord  Thring's  apothegmn  to 
heart:  "Bills  are  made  to  pass  as  razors  are  made  to  sell." 
In  other  words,  he  must   remember  that  the  exigencies  at- 

9 


tending  actual  lawmaking  easily  determine  the  fate  of  the 
measure  he  has  drafted;  or  if  not  the  fate,  they  determine  its 
final  form  or  arrangement ;  so  that,  ceteris  paribus,  an  amend- 
ment or  a  supplement  is  easier  to  pass  than  a  new  or  original 
measure. 

Next,  the  draftsman  must  study  the  decisions  of  the  various 
courts,  especially  the  courts  of  last  resort,  to  ascertain  how 
this  particular  subject  has  been  treated  by  the  judiciary,  or 
how  similar  bills  have  been  regarded.  This  is  always  of  the 
highest  importance  and  should  never  be  overlooked. 

We  shall  assume,  though,  that  a  new  measure  is  necessary, 
and  not  an  amendment.  If  the  subject  is  one  where  the 
conditions  are  not  peculiar  to  his  state,  the  drafsman  should 
go  over  the  laws  of  other  states  to  see  what  the  legislatures 
there  have  done  on  that  point.  If  a  law  is  found  that  wholly 
or  partially  suits  his  purpose,  he  must  see  how  it  has  been 
construed  by  the  courts.  It  is  a  well  known  rule  of  construc- 
tion, that  where  a  statute  of  another  jurisdiction  is  adopted  in 
whole  or  in  part  by  a  state  and  enacted  as  a  law  by  the  state 
adopting  it,  it  is  presumed  that  the  judicial  construction  of 
the  statute  made  by  the  courts  of  the  first  state  is  adopted 
along  with  the  statute.  And  this  rule  applies  generally  to  single 
w^ords  or  phrases  borrowed  from  other  enactments.  In  this 
construction  defects  may  have  been  pointed  out  or  ambiguities 
explained.  He  should,  furthermore,  ascertain,  if  possible, 
how^  the  law  has  operated  in  that  state  and  whether  it  has 
proved  to  be  practical  and  capable  of  easy  enforcement. 

The  draftsman  should  not  overlook  the  laws  of  the  other 
English-speaking  countries:  Great  Britain,  Canada  and  Aus- 
tralia. Most  excellent  work  along  the  lines  of  sensible  legis- 
lation and  the  proper  drafting  of  bills  is  being  done  in  those 
countries. 

But  with  all  this,  he  must  guard  against  mere  copying  of  the 
work  of  others.  Nothing  that  man  does  is  perfect ;  so  the  ideal 
draftsman  will  always  strive  to  improve  on  the  work  of  other 
draftsmen,  howsoever  great  be  the  fame  they  have. 

We  assume  that  in  all  his  work  so  far  our  draftsman  has 
kept  sedulously  in  mind  the  constitutional  limitations  of  his 
own  state  and  of  the  United  States.     Of  course,  to  us  in  Penn- 

10 


sylvania,  more  than  in  almost  any  other  state,  this  is  of  para- 
mount importance.  But  even  in  states  where  the  restric- 
tions are  not  so  great,  it  is  well  not  to  lose  sight  of  these  pos- 
sible limitations  that  determine,  possibly,  the  scope  of  the 
measure  being  drafted.  And  while  on  this  point  I  may  be 
permitted  a  suggestion  that  might  prove  helpful.  An  ana- 
lytically indexed  list  of  subjects  upon  which  legislation  is  for- 
bidden by  the  state  constitution,  or  by  the  national  constitu- 
tion, should  be  prepared  and  referred  to  very  frequently. 
In  this  list  should  be  included  the  restrictions,  not  amounting^ 
to  a  prohibition,  mentioned  in  the  aforementioned  constitu- 
tions. 

Coming  down  now  to  the  actual  work  of  preparing  the  bill, 
the  draftsman  should  sketch  out  his  measure  in  rough  outline. 
This  sketch  should  show  briefly  the  purport  of  each  proposed 
section;  its  relative  importance  and  its  relative  position. 
These  sections  should  be  arranged  in  logical  sequence.  The 
beginner  will  be  surprised  to  learn  how  great  a  bearing  this  has 
on  the  actual  consideration  of  the  measure  by  the  legislature, 
and  on  its  construction  by  the  courts.  A  good  draftsman  wall 
always  recognize  the  great  role  psychology  plays  in  legislation ; 
and,  let  me  say  it  with  due  deference,  in  judicial  matters.  That 
which  is  carefully  and  logically  arranged  is  easier  to  under- 
stand, and  induces  a  more  friendly  and  favorable  consid- 
eration than  one  which  imposes  a  greater  burden  on  the 
memory  and  the  understanding. 

The  draftsman  should  make  his  sentences  short  and  his 
sections  small.  This  is  not  always  possible ;  but  is  always 
desirable.  Naturally  it  makes  for  ease  in  understanding  the 
bill,  and  minimizes  the  possibility  of  error.  A  long  and  com- 
plex clause  should  be  cut  up  into  sub-sections.  Long,  in- 
volved sentences,  so  frequently  seen  in  bills,  are  an  abomina- 
tion. If  the  nature  of  the  subject  is  such  that  a  classification 
or  an  enumeration  of  persons  or  things  is  necessary,  they  may 
be  arranged  under  numbered  or  lettered  heads,  with  a  general 
clause  referring  to  them  as  a  whole. 

When  the  bill  has  been  drafted  the  title  should  be  drawn, 
and  not  before  then.  In  Pennsylvania  and  a  number  of  other 
states  the  title  of  a  statute  is  of  prime  importance,  being,  in 

11 


fact,  a  part  of  the  bill.  Some  constitutions  require  that  it 
state  clearly  the  purport  of  the  bill.  It  is  essential,  then,  that 
the  title  be  drafted  last  to  fit  the  bill ;  and  not,  as  is  often  the 
case,  the  bill  to  fit  the  title.  And  when  the  title  is  drawn,  it 
should  be  read  in  connection  with  each  section  of  the  bill  to 
the  end  that  it  may  clearly  express  the  whole  subject  of  the 
measure.  On  the  other  hand,  the  draftsman  should  not  fall 
into  the  error  of  making  it  an  index  of  the  contents  of  the  bill. 
This  is  not  only  not  necessary  but  even  dangerous,  as  the 
courts  in  their  construction  of  the  statute  may  infer  that  the 
items  enumerated  in  the  bill  are  all  that  the  legislators 
intended  to  enact,  and  therefore,  sections  not  thus  indexed 
may  be  declared  unconstitutional.  A  good  method  is  to  make 
the  title  as  general  and  as  brief  as  possible. 

Thus  far  I  have  confined  myself  to  a  rough  outline  of  the 
qualifications  requisite  in  an  ideal  bill  draftsman,  and  what 
might  loosely  be  termed  the  technique  of  drafting.  There 
remain  to  be  considered  a  number  of  general  rules 
which  must  be  ever  born  in  mind  by  one  drafting  a  legislativv- 
measure.  I  shall  not  attempt  to  formulate  these  rules  in  set 
terms,  but  shall  merely  offer  and  discuss  them  as  suggestion?. 
recommended  to  the  careful  consideration  of  anyone  who 
wishes  to  become  proficient  in  his  work.  Nor,  furthermore, 
does  the  arrangement  of  them,  or  their  relative  position,  have 
any  bearing  on  their  importance. 

T  shall  begin  with  the  subject  of  definitions,  although  in  the 
eyes  of  many  this  is  of  least  importance.  There  is  no  one 
who  does  not  know  that  nine-tenths  of  all  discussions  in  this 
world  could  be  avoided  if  the  disputants  at  the  outset  would 
agree  on  their  definitions.  So  it  is  in  bill-drafting.  In  order 
to  make  things  clear  beyond  the  shadow  of  a  doubt,  it  has  be- 
come customary  of  late  years  to  define  certain  terms  which 
lie  at  the  heart  of  the  subject  of  the  bill.  There  is  hardly  any 
doubt  regarding  the  advisability  of  this.  One  great  authority 
in  England  advises  against  them,  but  advances  no  sound 
reasons  in  favor  of  his  position.  In  this  country  at  least  the 
practice  seems  to  be  a  growing  one,  and  has  been  adopted  by 
the  ablest  workers  in  this  field.  There  is,  however,  some  dis- 
pute as  to  the  proper  place  of  the  definitions;  whether  they 

12 


should  be  placed  at  the  beginning  or  at  the  end  of  the  bill. 
I  hold  most  emphatically  with  those  who  would  place  them  in 
the  first  section.  If  they  are  so  placed,  the  lawmaker,  the 
judge,  the  lawyer,  or  the  layman,  reading  the  law,  starts  forth 
with  a  clear  idea  of  the  words  and  phrases  which  are  used 
most  frequently  in  the  law,  or  which  are  of  the  greatest  im- 
portance in  understanding  it. 

But  in  the  definitions  great  care  should  be  exercised  to  use 
no  word  nor  phrase  that  is  ambiguous.  In  some  states  the 
plan  is  being  adopted  of  having  the  legal  definitions  of  certain 
frequently  recurring  w^ords  and  phrases  grouped  in  one  act, 
known  as  a  Construction  Act,  or  Interpretation  Act.  Great 
Britain  set  us  an  example  in  this  regard  years  ago. 

The  draftsman  should  never  in  the  same  bill  use  a  word  in 
different  senses ;  nor  should  he  use  different  words  to  express 
the  same  thing. 

The  draftsman  should  be  very  careful  in  his  use  of  adjec- 
tives and  relative  pronouns;  and  still  more  careful  in  his  use 
of  participles  used  as  adjectives  after  the  noun  or  nouns  they 
modify.  English  is  a  language  practically  devoid  of  inflec- 
tions, so  that  the  meaning  of  a  word  is  greatly  influenced  by  its 
relative  position. 

"Nouns  should  be  used  in  preference  to  pronouns,  even 
though  the  noun  has  to  be  repeated."  As  Thring  says : 
"Repetition  of  the  same  word  is  never  a  fault  in  business 
composition  if  an  ambiguity  is  thereby  avoided." 

Some  draftsmen  pay  great  attention  to  the  tense  of  the 
verbs  they  use.  Lord  Thring  says:  "Acts  of  Parliament 
should  be  deemed  to  be  always  speaking,  and,  therefore,  the 
present  or  past  tense  should  be  adopted,  and  "shall"  should 
be  used  as  an  imperative  only,  and  not  as  a  future."  This  is, 
however,  to  my  mind  an  open  question,  to  be  settled  by  each 
draftsman  for  himself. 

The  question  whether  a  sentence  in  a  bill  should  be  put  in 
the  affirmative  or  in  the  negative  form  is  an  important  one. 
To  quote  Lord  Thring  again :  "The  greatest  caution  must 
be  used  in  putting  a  sentence  in  a  negative  form,  as  it  makes 
the  performance  of  the  conditions  a  matter  of  absolute  neces- 
sity, and  the  omission  of  the  smallest  portion  of  them  will 

13 


render  certain  acts  altogether  nugatory.  On  the  other  hand, 
if  the  affirmative  expression  alone  be  used,  the  court  will 
consider  the  enactments  as  to  the  conditions  as  directory  and 
dispense  with  them  on  due  cause  being  shown  for  their  omis- 
sion" As  an  example  of  the  negative  form  let  us  take  the 
following:  ''No  appeal  shall  be  entertained  unless  the  follow- 
ing conditions  have  been  complied  with."  In  this  case,  un- 
less certain  conditions  are  compiled  with,  an  appeal  may  not 
be  entertained.  Let  us  now^  put  it  in  the  affirmative  form : 
"Any  person  may  appeal  to  such  and  such  a  court  subject  to 
the  following  conditions  and  regulations.''  Here  the  court 
has  a  w^ise  discretion  allowed  it.  It  has  the  power  of  remitting 
certain  of  the  conditions  and  regulations  upon  good  cause 
therefor  being  shown.  Which  of  these  two  forms  should  be 
used  will  always  depend  on  the  subject  matter  of  the  bill,  or 
the  intent  of  the  legislature,  and  on  the  general  policy  of  the 
state. 

Provisos  should  be  kept  out  of  his  bill.  If  there  has  to  be  an 
exception,  let  him  state  it  succinctly  in  a  short  section  follow- 
ing the  main  one  to  which  the  exception  is  made.  And  let  him 
remember  that  provisos  are  often  construed  strictly.  They 
often  endanger  the  entire  bill.  The  courts  in  interpreting  a 
proviso  generally  confine  it  to  that  which  immediately  pre- 
cedes, or  to  the  section  to  w^hich  it  is  appended,  unless  it  is 
clearly  intended  to  have  a  wider  scope. 

As  to  preambles,  I  should  advise  against  their  use  unless 
the  draftsman  or  his  client  thinks  it  essential  to  the  passage  of 
the  measure.  If  he  must  have  one,  he  should  so  frame  his 
bill  that  it  will  be  intelligible  without  resorting  to  the  pre- 
amble for  explanation. 

The  question  of  repeal  is  also  a  very  important  one.  If 
the  bill  is  liable  to  introduce  sweeping  changes  in  the  law, 
the  repealing  clause  should  be  given  the  most  careful  atten- 
tion. It  would  be  well  to  make  the  repeal  very  broad  so  as 
to  include  all  special  and  local  laws,  if  the  bill  being  drafted 
is  meant  to  apply  to  the  whole  state.  And  it  is  well  to  insert 
in  a  repealing  clause  a  sentence  to  the  efifect  that  the  repeal  of 
a  prior  law  will  not  operate  to  revive  any  law  not  in  force 
at  the  time  of  such  repeal.     Curious  legal  complications  have 

14 


arisen  through  disregard  of  this.  Instead  of  repeating  this 
clause  at  the  end  of  every  bill,  it  will  be  better  practice  to  in- 
duce the  legislature  to  enact  a  general  law  on  the  subject  ap- 
plicable to  all  repeals.  $ome  states  of  the  Union  have  already 
enacted  such  a  statute. 

Before  leaving  the  subject  of  repeals  let  me  remind  the 
draftsman  that  repeals  by  implication  are  not  favored  by  the 
courts.  If  he  intends  by  his  bill  to  widen  the  scope  of  a  prior 
act,  or  to  supersede  it,  let  him  see  that  the  prior  act  is  re- 
pealed in  express  terms.  Further  than  this,  he  must  not  for- 
get that  a  repealing  statute  is  generally  construed  retro- 
spectively; so  that  unless  he  intends  otherwise,  he  should  in- 
sert a  provision  in  the  repealing  clause  to  the  effect  that  such 
repeal  will  not  affect  any  act  done,  right  vested,  duty  imposed, 
penalty  accrued  or  proceeding  commenced,  before  the  date 
of  such  repeal.  In  this  connection  one  should  remember  that 
where  there  is  a  prior  act  on  the  same  subject  as  the  bill  in 
hand,  the  latter  will,  if  it  become  a  law,  be  interpreted  with 
reference  to  the  former. 

In  preparing  a  bill  whereby  certain  things  are  prohibited 
or  certain  things  are  commanded,  care  should  be  taken  that 
the  enforcement  of  the  act  be  given  as  a  duty,  in  set  terms  to 
some  department  or  to  some  official.  Everybody's  business 
is,  alas,  so  often  nobody's  business. 

The  draftsman  should  not  follow  several  special  terms  with 
a  general  term.  For  example :  "It  shall  be  unlawful  for  any 
farmer,  drover  or  any  other  person  to,  etc."  The  courts  have 
applied  to  this  sort  of  enumeration  a  rule  called  the  "ejusdem 
generis"  rule,  whereby  the  application  of  the  law  is  limited  to 
persons  or  things  of  the  kind  or  class  specifically  mentioned. 

Penal  and  criminal  statutes  are  always  strictly  con- 
strued. The  draftsman,  then,  should  so  frame  such  bills  that 
their  intent  would  be  very  clear,  both  as  to  meaning  and 
scope.  Further,  in  the  preparation  of  a  penal  or  criminal 
measure,  or  of  a  clause  fixing  a  penalty,  he  should  endeavor 
to  adhere  to  the  general  policy  of  his  state  in  such  matters. 
He  should,  in  this  connection,  examine  the  penalties  fixed  in 
statutes    enacted    in    similar    or    analogous    cases.     Caution 


15 


should  be  exercised  in  fixing  minimum  penalties.     My  per- 
sonal opinion  is  that  they  should  never  be  used. 

Again,  in  drafting  penal  or  criminal  measures  where  pro- 
vision is  made  for  summary  conviction,  great  care  should  be 
taken  to  see  that  the  clause  reads  as  clearly  as  possible.  The 
draftsman  must  bear  in  mind,  in  this  connection,  the  con- 
stitutional rights  of  the  citizens  of  the  state;  and  he  must 
remember  that  statutes  authorizing  summary  proceedings 
will  be  construed  with  great  strictness,  and  must  be  exactly 
followed  by  those  whose  duty  it  is  to  enforce  them. 

Statutes  in  derogation  of  the  common  law  and  in  derogation 
of  the  common  right  will  be  strictly  construed. 

In  drawing  a  bill  dealing  with  judicial  procedure,  the  drafts- 
man must  not  fail  to  except  from  its  operation  actions  at  law 
already  begun,  unless  he  intends  to  include  them. 

The  draftsman  should  early  learn  to  distinguish  between 
statutes  and  provisions  which  are  mandatory  and  those  which 
are  merely  directory.  Every  bill*  should  be  so  clearly  drawn 
that  there  can  be  no  ambiguity  on  this  point.  The  courts 
have  no  hard  and  fast  rule  in  their  determination  of  questions 
of  this  nature.  The  meaning  and  intention  of  the  legislature 
govern.  If  the  bill  is  clearly  and  unequivocally  drawn  the 
intent  of  the   legislature  will  be   plain. 

In  the  preparation  of  amendments  the  draftsman  should 
remember  that  the  amendment  becomes  to  all  intents  and 
purposes  a  part  of  the  amended  law.  He  should,  then,  when 
drafting  the  amendment,  read  over  carefully  the  entire 
original  statute  with  the  amendment  in  its  intended  place. 
He  will  thus  be  better  able  to  grasp  clearly  the  full  force  and 
effect  of  his  measure.  It  is  well  also  to  remember  that  un- 
less the  contrary  intention  appears,  the  amendment  will  be 
construed  as  applying  only  to  facts  or  things  subsequent  to  its 
enactment.  This  despite  the  fact  that  the  amendment  be- 
comes, as  I  stated,  a  part  of  the  original  act. 

The  careful  draftsman  will  never  draw  any  measure  pur- 
porting to  construe  any  prior  law  or  part  of  a  law.  The  right 
to  construe  statutes  lies  solely  with  the  judiciary.  It  is  a 
right  that  is  sedulously  and  zealously  guarded.  The  same  end 
can  be  attained  by  the  draftsman  if  he  redrafts  as  a  bill  the 

16 


entire  prior  law,  making  the  changes  deemed  necessary.  Then 
the  old  law  should  be  specifically  repealed. 

He  should  not  attempt  to  draw  up  a  tax  or  revenue  measure, 
or  one  amending  such  a  law,  unless  he  is  thoroughly  familiar 
with  the  system  of  taxation  in  his  state.  In  many  states,  on 
account  of  ill  considered  tinkering  with  the  laws,  the  state 
revenue  system  is  in  a  most  deplorably  chaotic  condition. 

Finally,  as  a  parting  suggestion  to  the  draftsman,  I  should 
advise  him,  especially  if  he  is  a  state  official,  to  hold  himself 
in  readiness  at  all  times  to  explain  the  reasons  for  the  phrase- 
ology and  arrangement  of  his  bill,  and  to  explain  the  effect  of 
it  if  it  become  a  law.  To  this  end  it  would  be  well  for  him  to 
brief  up  all  his  reasons  in  the  same  manner  as  a  careful  lawyer 
prepares  his  case. 

For  the  benefit  of  those  who  may  wish  to  make  a  study  of 
the  subject  of  bill-drafting,  I  have  added  a  list  of  works  that 
will  be  very  helpful : 

Beal,  Edward, 

Cardinal  Rules  of  Legal  Interpretation. 
London,  1908. 
Bentham,  Jeremy, 

A  General  View  of  a  Complete  Code  of  Laws. 
Nomography  or  the  Art  of  Inditing  Laws. 
Bishop,  Joel  Prentiss, 

Commentaries  on  the  Written  Laws  and  Their  In- 
terpretation. • 
Boston,  1882. 
Black,  Henry  Campbell, 

Interpretation  of  Laws. 
St.  Paul,  Minn.,  1911. 
Black,  Henry  Campbell, 
Constitutional  Law. 

St.  Paul,  Minn.,  1910. 
Bruncken,  Ernest, 

Hints  on  Drawing  Legislative  Bills. 
Legislative  Reference  Bulletin  No.  1.. 
California  State  Library,   1908. 

17 


Buckalew,  C.  R., 

An    Examination    of    the    Constitution    of    Pennsyl- 
vania, 1883. 
Coode,   George, 

Legislative  Expression. 
1852  (second  edition). 
Cooley,  Thomas  M., 

Constitutional  Limitations. 
Boston,  1903. 
Craies,  William  F., 

A  Treatise  on  Statute  Law. 
London,  1907. 
Dicey,  A.  V., 

Conflict  of  Laws. 
London,  1908. 
Dwarris,  Sir  Fortunatus, 

Statutes  and  Constitutions. 
Albany,  1875. 
Endlich  G.  A., 

Interpretation   of   Statutes. 
Jersey  City,  N.  J.,  1888. 
Freund,  Ernst, 

Police  Powers. 
Chicago,  1904. 
Gael,  Samuel  Higgs, 

Legal  and  General  Composition. 
London,  1840. 
Gilbert,  Frank  B., 

(Bill  Drafting  Bureau,  New  York  Legislature). 

Statutes.     Legislation  Bulletin  22b.     Review  of 
Legislation,   1903.     New  York  State   Library. 
Goodnow,  F.  J., 

Comparative  Administration  Law  (two  volumes). 
New  York,  1893. 
Griggs,  John  W., 
Lawmaking. 

Reports    American    Bar    Association,     1897. 


18 


Hutchins,  F.  E., 

Construction — Some  of  its  uses  and  abuses. 

Reports  Ohio  State  Bar  Association.     1897. 
Ilbert,  Sir  Courtenay, 

Legislative  Methods  and  Forms. 
Oxford,  1901. 
Lapp,  John  A., 

Hints  on  Bill-drafting. 

Bulletin   No,  4.     Legislative   Reference   Depart- 
ment.    Indiana  State   Library,   1910. 
Law,  the  Making  and  Revision  of. 

Papers  read  at  Fourth  Annual  Meeting  (1907)  of  the 
American  Pol.  Sci.  Association. 
Lieber,  Francis, 

Legal  and  Political  Hermeneutics. 
St.  Louis,  1880. 
Maxwell,  Sir  Peter  Benson, 
Interpretation  of  Statutes. 
London — Toronto,  1905. 
Monett,  F.  S., 

Statutory  Construction. 

Reports  Ohio  State  Bar  Association.     1895. 
New  York  State  Library, 

Year  Book  of  Legislation. 
Oliver,  A.  L., 

Statutory  Revision. 

Reports  Missouri  Bar  Association.     1908. 
Ordronaux,  John, 

Constitutional  Legislation. 
Philadelphia,  1891. 
Prentice,  W.  P., 
Police  Powers. 

New  York— Albany,  1894. 
Russell,  Alfred, 
Police  Powers. 

Chicago,  1900. 
Sanderson,  J.  F., 

Validity  of  Statutes  in  Pennsylvania. 
Philadelphia,  1898. 

19 


Sedwick,  Theodore, 

Construction  of  Statutory  and  Constitutional  Law. 
New  York,  1874. 
Smith,  E.  Fitch, 

Commentaries    on    Statute   and   Constitutional    Law 
and  Statutory  Construction. 
Albany,  1848. 
Stimson,  Frederic  Jesup, 
Popular  Lawmaking. 
New  York,  1910. 
Stimson,  Frederic  Jesup, 

Federal  and  State  Constitutions. 
Boston,  1908. 
Stimson,  Frederic  Jesup, 

American  Statute  Law   (two  volumes). 
Boston,  1886. 
Story,  Joseph, 

Conflict  of  Laws. 
Boston,  1883. 

Sutherland,  J.  G. 

Statutory     Constitution     (second    edition    by    John 
Lewis). 

.  Chicago,  1904. 
Symonds,  Arthur, 

The  Mechanics  of  Lawmaking. 
London,  1835. 
Thring,  Henry,   (Lord) 
Practical  Legislation. 

Toronto— Boston,  1902. 
Wade,  William  P., 
Retroactive  Laws. 
St.  Louis,  1880. 
Wharton,  Francis, 
Conflict  of  Laws. 
Rochester,  1905. 
White,  Thomas  Raeburn, 

Commentaries  on  the  Constitution  of  Pennsylvania. 
Philadelphia,  1907. 

20 


Wilberforce,   Edward, 
Statute  Law. 

London,  188L 
Willard,  Ashton  R. 

A  Legislative  Hand  Book. 

Boston— New  York,  1890. 
Wyman,  Bruce, 

Principles  of  the  Administrative  Law  Governing  the 
Relations  of  Public  Officers. 
St.  Paul,  1903. 


21 


(22) 


GAYLOSD   BROS. 

MAKERS 

SYRACUSE,  -  N.Y. 

PAT,  JAN.  2(,  IS03 


